Shooting Oneself in the Foot, Venezuela Edition

Clear back in 2019, during Trump 1.0, members of Congress (29 Democrats and 3 Republicans) introduced legislation to mandate the grant of Temporary Protected Status (TPS) to Venezuelan nationals. TPS for Venezuelans was as bad an idea then as it now, which can be seen clearly with the benefit of hindsight, and the bill did not pass. 

Furthermore, the first Trump administration took no action to administratively grant TPS to Venezuelans, as it might have done under Section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a, for which the present Trump White House might be entitled to a little schadenfreude, but for the inconvenient intervention of the next administration. 

The Biden White House, through the adroit handling of then-Homeland Security Secretary Alejandro Mayorkas, announced in 2021 that it was granting TPS to Venezuelan nationals. The status was renewed in 2023, and again on January 17, 2025 (three days before President Trump’s inauguration, apparently as a parting gift).

In the meantime, approximately 350,000 Venezuelans had availed themselves of that status, with an indeterminate number proving themselves in the fullness of time to be thugs of the worst sort: members and affiliates of the criminal organization Tren de Aragua (“Aragua Train”, abbreviated as TdA in the American media). These individuals quickly gained notoriety by being filmed taking over whole apartment buildings, shoving out other migrants in the process, so that they could use the apartments for their illicit drug, gun, and money dealings; by also being filmed savagely beating New York City police officers; and by other acts of murder and mayhem, including the heinous murder of Laken Riley in Georgia.

The present administration took immediate steps to try to undo the outrageous state of affairs – it declared TdA a terrorist organization under Section 219 of the INA, 8 U.S.C. § 1189; it invoked the Alien Enemies Act (“AEA”, 50 U.S.C. Ch. 3) to expel them from the United States; and it promulgated a rule in the Federal Register terminating TPS for Venezuelans – but the damage was done and, as often happens with immigration matters, administration officials now find themselves bogged down in lawfare whose sole purpose appears to be to defeat the effective functioning of federal deportation statutes, and as is also often the case, some of the lawfare is rich with ironies. 

Even as a federal judge issued an injunction to prevent the termination of TPS (despite the plain language of the statute, which says, “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection”), a state judge in New Mexico quickly resigned in disgrace after it was discovered that he was permitting an alleged Venezuelan gang member to live on his property. 

Worse, the Supreme Court has ordered the administration to cease using the AEA for removals, pending further judicial proceedings.

This has left the administration with few avenues to fight the TdA scourge, forcing it to spend time and resources arguing matters in the various courts up to and through the Supreme Court. But fighting, it is. For instance, the U.S. Attorney’s Office for the Southern District of New York has indicted 27 TdA members and associates on racketeering charges that subsume individual crimes of murder; sex, drug and gun trafficking; and robbery. It’s also worth noting that even though Venezuelans cannot at the moment be removed under the AEA, they can still be taken into custody on immigration violations and held, hopefully under conditions of no (or appropriately high) bond amounts, although limited detention space is always an issue for immigration officials to grapple with. Still, if any aliens ever merit lockdown pending removal, it is suspected TdA members and associates.

This whole mess is a classic example of the federal government shooting itself in the foot as administrations change and radically whipsaw immigration policies from one end of the spectrum to the other. The problem is that granting benefits is always easy. But with benefits comes a sense of entitlement, and an expectation that the status will never be revoked. And history has proven this sense of entitlement to be accurate, no matter what the statute says.

Many aliens from various nations became happy beneficiaries of TPS for years upon years, even though conditions had long since changed radically in their home countries that should have made return perfectly normal. As Mark Krikorian, Executive Director of the Center, has often said, there is nothing so permanent as a temporary immigration status. 

What is to be done? 

The answer is clear: Congress must act – urgently – to strike Temporary Protected Status from the law. It has been abused across multiple administrations, on behalf of multiple nationalities, at the expense of public safety and the common weal.